Pregnancy sick leave in Canada: medical leave, EI sickness and provinces

First find out which law covers you

Canada has two employment standards systems. A minority of workers, in banking, telecommunications, interprovincial transport, broadcasting and the federal public service, are federally regulated and covered by the Canada Labour Code. Everyone else is covered by their province or territory's employment standards act.

The rules are different, and the gap is wide. Getting this wrong means claiming an entitlement you do not have, or missing one you do. If you are unsure, ask your employer which jurisdiction governs your employment, in writing.

Federally regulated employees: the Canada Labour Code

Section 239 of the Canada Labour Code sets out medical leave, and the numbers are specific. Every employee is entitled to and shall be granted a medical leave of absence of up to 27 weeks as a result of personal illness or injury, organ or tissue donation, medical appointments during working hours, or quarantine.

Note that third reason. Medical appointments during working hours are a statutory ground for medical leave under federal law, which covers antenatal appointments directly.

How the paid days accrue

Paid medical leave is earned rather than granted in a block. After completing 30 days of continuous employment, an employee earns 3 days of medical leave with pay. After that, at the beginning of each month following a completed month of continuous employment, they earn 1 further day.

The cap is stated separately: an employee is entitled to earn up to 10 days of medical leave with pay in a calendar year. Each paid day must be paid at your regular rate of wages for your normal hours of work, and that pay counts as wages for all purposes.

Unused paid days carry forward to 1 January of the following year, and each carried-forward day reduces by one the maximum you can earn in that year.

Notice and certificates

If you intend to take medical leave you must give the employer written notice of the start day and expected duration at least four weeks before, unless there is a valid reason you cannot, in which case notice must be given as soon as possible. Tell the employer in writing about any change in length as soon as possible.

An employer may require a medical certificate only after a medical leave of at least five consecutive days, and must ask in writing no later than 15 days after you return to work. Your pension, health and disability benefits and your seniority accumulate during the entire medical leave.

The Code also prohibits an employer from dismissing, suspending, laying off, demoting or disciplining you because you intend to take or have taken medical leave, or taking it into account in promotion or training decisions.

Employment Insurance sickness benefits

Where sick leave runs out, Employment Insurance may take over. The Employment Insurance Act caps the number of weeks of benefit payable because of a prescribed illness, injury or quarantine at 26 weeks.

For comparison, the same section caps benefits for a single pregnancy at 15 weeks, which is the maternity benefit rather than the sickness benefit. The two are separate entitlements with separate caps.

Ontario as a worked example

Because most Canadians are provincially regulated, here is one province in full. This applies in Ontario only and is not a national figure.

Under Ontario's Employment Standards Act, most employees have the right to take up to 3 days of unpaid job-protected leave each calendar year due to a personal illness, injury or medical emergency, once they have worked for the employer for at least 2 consecutive weeks.

There is no pro-rating: someone who starts work partway through the year still gets 3 days for the rest of it. Unused days cannot be carried over. The leave can be taken in part days, full days or longer periods, and if you take part of a day the employer may count it as a full day. Employees taking sick leave have the same protections as employees taking pregnancy or parental leave, and the ESA prohibits an employer from requiring a medical note for ESA sick leave.

What we are not going to generalise

Every province and territory sets its own sick leave entitlement, and several are considerably more generous than Ontario's three unpaid days. We are not going to publish a thirteen-jurisdiction table and let it drift out of date, because being wrong here costs someone paid days.

Your provincial or territorial ministry of labour is the authority. If your employment contract or collective agreement is more generous than the statutory minimum, the contract applies instead.

Before you need it

Confirm your jurisdiction. If you are federally regulated, keep track of your accrued paid medical days, because they carry forward. Book antenatal appointments with the four-week notice rule in mind where it applies. And if a longer absence looks likely, look at EI sickness benefits early, because applications take time to process.

Protections that apply during medical leave

Federal law protects more than your job title. Your pension, health and disability benefits and your seniority accumulate during the entire period of the medical leave. If contributions are required from you to keep a benefit, you are responsible for paying them within a reasonable time unless you tell the employer you intend to discontinue them, and the employer must continue their share in at least the same proportion as if you were not absent.

You are also entitled, on written request, to be told in writing about every employment, promotion or training opportunity that arises while you are on medical leave and for which you are qualified.

The one exception to reinstatement

The Code prohibits dismissal, suspension, layoff, demotion or discipline because you intend to take or have taken medical leave. The narrow exception is that an employer may assign you to a different position, with different terms and conditions, if after the leave you are unable to perform the work you did before. That is a real limit, and worth taking advice on if it is raised with you.